Court name
HC: Land Division (Uganda)
Judgment date
2 May 2017

Owere & Ors v Uganda (HCT-04-CN-2013/33) [2017] UGHCLD 75 (02 May 2017);

Cite this case
[2017] UGHCLD 75
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CN-0033-2013

(ARISING FROM TORORO CRIMINAL CASE NO. TOR-00-CR-0310-2013)

 

OWERE MONDO& OTHERS       ::::::::::::::::::::::::::::::::::::::::          APPELLANTS

VERSUS

UGANDA                                          ::::::::::::::::::::::::::::::::::::::::          RESPONDENT

 

BEFORE: HON. MR. JUSTICE HENRY I. KAWESA

 

 JUDGMENT

 The appellants were jointly charged on 4 counts of:

C1: Occupying land without the owner’s consent contrary to section 92(1) (c) of the Land Act.

 C2: Criminal trespass contrary to section 302 (a) of the Penal Code Act.

C3: Going armed in public contrary to section 76 of the Penal Code Act.

C4: Forcible entity contrary to section 77 of the Penal Code Act.

Accused were convicted on counts 1, 2 and 4. They were dissatisfied and filed an appeal, raising 7 grounds.

The grounds of appeal briefly to the effect that;

Ground 1, 2 and 3- Failing to properly evaluate the evidence.

Ground 5, 6 – Learned trial Magistrate applied wrong legal principles.

Ground 4 and 7- Learned trial Magistrate failed to recognize accused’s rights on the land as opposed to claims by the state (claim of right).

 

As  a first appellate this court  has the duty to  reappraise  the evidence  and  make it’s own conclusions  bearing  in mind the  fact that it did not listen to, or observe the witnesses. See: Pandya V R [ 1957] E.A. 336, also Banco Arabe Espanol V Bank of Uganda SCCA8/ 1998(unreported )

 

This appeal, the respondent did not file any affidavit in reply, nor any submissions.

The court will therefore only consider the submissions filed by the appellants.

 I have perused the said submissions. I have also re-appraised all evidence adduced in the lower court, and submissions thereat.

 

The following facts are worth of noting.

In all criminal cases the burden of proof rests upon the prosecution on a standard of proof that is “beyond all reasonable doubt”

See: Woolmington V. DPP (1935) AC 462.

 

I noted that all the charges related to a land dispute. The evidence as adduced by all parties and acknowledged by the learned trial Magistrate on record (page 86-87) of record of proceedings, is to the effect that “this is yet another case where defence counsel believes a land matter is being criminalized…

 

I have  taken judicial  notice of the fact that the parties  were also  before court under  a land  dispute filed by the complainant  under  CS/ 008 0f 2013  of  Chief Magistrate’s Court  of  Tororo.

 

I have also  taken judicial notice  of the fact that the  court record contains exhibited documentary evidence received by  court as PXI , from office of LCIII Nabuyoga  sub-county, Tororo  showing  that by  27th  March 2017  parties already were having  a claim of grabbing  their land before the local  authorities.

 

PE5 -Shows a list of complainants from Musasa community.

DX3 -letter of CM LCIII of Nyamalogo Parish, also dated 26.3. 2012 shows that whole communities were having land claims over the land which was the subject of the case in court.

 

The evidence above (documentary) when considered together with the oral evidence in court, shows that the accused persons had a civil claim (mistakenly or rightly) as against the complainant.  This is the gist of appellant’s counsel’s arguments on submissions under grounds 4 and 7.

 

Having those observations as background to this appeal. The court now resolves this appeal as follows:

 

Ground 4 and 7

These grounds are to the effect that appellants had a reasonable claim of right to his land and should therefore not have been convicted.

This raises a legal principle contained in section 7 of the Penal Code Act thus.

A person  is not  criminally  responsible  in respect  of an  offence  relating  to property if the act  done or omitted to be  done  by the person with respect  to the property  was done  in the exercise of an  honest  claim  of right and  without  intention to defraud.”

 

The accused did not defend and opted to keep quiet.  This means that the prosecution assumed the duty to prove beyond doubt that all accused had no such defence available to them. The evidence adduced through documentary evidence and the witnesses before court all proved that the matter before court was a civil dispute involving land, titles, boundaries, etc. This defence was therefore available to the accused. Though they did not raise it in defence, it was highlighted  in the trial  and at  submissions.   However, it was not given sufficient consideration by the prosecution to destroy it. Also the learned trial Magistrate did not sufficiently consider its implication. The implication of section 7 of the Penal Code Act is to protect claimants of property from such criminal prosecutions instead of civil remedies.

In the result, the effect that accused could not be found criminally liable for the alleged offences on this land whose ownership was still subject to civil litigation, and in which they held a honest claim of right. 

For this reason and those argued by appellants counsel I find that ground 4 and 7 are proved.

 

The finding under ground 4 and 7 do answer the rest of the grounds 1, 2, 3, 5 and 6. Since the accused had a honest claim of right, the learned trial Magistrate could not have convicted them of these offences. Ground 1, 2, 3, 5 and 6 succeeds as argued.

 

For the reasons above this appeal succeeds on all grounds. The Judgment, conviction and sentence of the accused by the learned trial Magistrate are hereby set aside. Accused are not found liable on this charge. They are acquitted thereof. All monies paid as bail or fines be refunded to them.

I so order.

 

Henry I. Kawesa

JUDGE

02.05.2017